Public secrecy gets a scolding

Published
9:40 pm EST, Sunday, November 6, 2011

How many times do government agencies need to be told that they are not engaged in some secret enterprise? How loud and clear do courts have to be before public officials wake up to the fact that the public is entitled to public information?

And how many cases will it take for Gov. Andrew Cuomo and the state Legislature to see what more they so obviously need to do to ensure that public officials understand and follow not just the letter of the law, but the spirit of it?

The latest waste of time and money comes courtesy of the state Department of Taxation and Finance, and was positively Kafkaesque. It involved a dispute with an adult club on Long Island over whether lap dances are subject to sales tax.

The club's attorney, Barry Leibowicz, got a court order for tax records, only to find they were unreadable without special software -- which the tax department refused to release, claiming that software isn't subject to the Freedom of Information Law.

The Appellate Division last week disagreed. The only question now is how much in attorney's costs the tax department -- read: taxpayers -- will be on the hook for.

Imagine if the state had won this. As Mr. Leibowicz told the New York Law Journal, government could store information in proprietary formats and never have to release the software needed to decipher it. Government might as well write everything in a language only it knows.

This is just the latest recent decision to remind state and local officials of their obligation to provide information to citizens. The lessons come at a cost to taxpayers who now must pay the winners' attorney fees:

The New York Civil Liberties Union successfully sued the city of Saratoga Springs for records on police use of Tasers. A recent NYCLU statewide report raised concerns about Taser policies and training.

NYCLU also won a case compelling State Police to release their policies on videotaping interrogations.

The Times Union successfully fought the city of Albany for parking ticket records that helped expose practices that allowed a privileged few motorists to get away with illegal parking for years.

The Schenectady County Society for the Prevention of Cruelty to Animals successfully sued the state Education Department for a list of veterinarians. The state claimed that because the records might -- just might -- include home addresses, they were exempt from disclosure. The Court of Appeals said there were simple fixes to that issue, and noted that this was hardly news -- the State Committee on Open Government had told the department that licenses are public information. A clearly irritated court said it was "at a loss to understand why this case has been litigated," and wrote: "It is our hope that the department, and other agencies of government, will generally comply with their FOIL obligations in a more efficient way."

We should be able to do more than hope. The Legislature should see what in the existing laws is too vague, might send mixed signals or might be said more forcefully to affirm the public's right to know.

And Mr. Cuomo, who promoted openness in his years as attorney general and his months on the campaign trail, should recognize that he is now in an even better position to tell state agencies to stop erring on the side of secrecy.

If err they must, it ought to be on the side of sunlight.

More Information

THE ISSUE:

Courts are increasingly admonishing government for withholding information.

THE STAKES:

When will government leaders put an end to these unnecessary, costly battles?

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